1. Inventory searches of lawfully impounded vehicles, conducted pursuant to standardized
policy procedures, are an exception to the warrant requirement.

2. The purposes of an inventory search are to protect the owner's property while it remains in
police custody, protect the police against claims or disputes over lost or stolen property,
and protect the police from potential danger.

3. In order to impound a vehicle, the police must have authority by statute or ordinance, and
if no such authority exists, impoundment is appropriate only if the State establishes
reasonable grounds for the impoundment based upon the totality of the circumstances.

4. An impoundment is not unreasonable simply because a competent driver was not given an
opportunity to arrange for the disposal or removal of a vehicle to avoid impoundment.
However, the officer's inquiry of the driver regarding disposition is an important factor to
be considered among the totality of the circumstances in the determination of whether
impoundment is reasonable.

5. When the State failed to establish that the vehicle operated by the defendant was
unattended, illegally parked, or obstructing traffic, and the officers failed to consult the
operator or attempt to contact the registered owner regarding disposition, the
impoundment of the vehicle was not based on reasonable grounds under the totality of the
circumstances.

CAPLINGER, J.: Jason Branstetter appeals his convictions of one count of
possession of
methamphetamine, K.S.A. 2007 Supp. 65-4160(a), and one count of possession of a controlled
substance without a tax stamp affixed, K.S.A. 79-5204. Branstetter argues that law enforcement
officers lacked statutory authority or other reasonable grounds to impound his vehicle following
his arrest and the district court therefore erred in denying his motion to suppress evidence
discovered during the inventory search which followed impoundment.

Because the vehicle operated by the defendant was not unattended, illegally parked, or
obstructing traffic, and the officers failed to consult the defendant or attempt to contact the
registered owner regarding disposition, we conclude the impoundment of the vehicle was not
based on reasonable grounds under the totality of the circumstances and the subsequent inventory
search was unlawful.

Factual and procedural background

Around 1:10 a.m. on December 15, 2005, Sedgwick County Sheriff's Deputy Tracy
Spreier spotted Branstetter walking out of a Wichita convenience store at 47th Street South and
Seneca and saw Branstetter's vehicle in the store's parking lot. Deputy Spreier recognized
Branstetter based upon multiple prior contacts and knew Branstetter had several outstanding
warrants. Spreier drove through the convenience store parking lot to confirm his identification
and noticed a woman, who he later identified as Robin Dodd, in the passenger seat of
Branstetter's vehicle.

Spreier drove his patrol vehicle to a nearby intersection where he waited until Branstetter's
vehicle left the parking lot. Spreier then initiated a traffic stop based solely on the outstanding
warrants, pulling Branstetter over "roughly" in the 5000 block of South Seneca in Wichita.

Spreier obtained Branstetter's identification and registration papers, which showed the
vehicle was registered to Kenneth Robertson. After confirming Branstetter's outstanding warrants,
Spreier ordered him out of the vehicle. Spreier also checked Dodd's identification and found no
evidence of outstanding warrants. After a second officer arrived, Spreier placed Branstetter into
custody. Because the vehicle's registered owner was not present, Spreier impounded the vehicle
without consulting Branstetter regarding its disposition, pursuant to sheriff's department policy.

A short time later, the deputies conducted an inventory search of the vehicle along with
the police K-9 unit, which Spreier requested based upon his "belief that there was a good
possibility that narcotics were in that vehicle, as well." Officers discovered methamphetamine in
the center console cupholder and behind the driver's seat.

Around 1:40 a.m., Spreier read Branstetter his Miranda rights, and
Branstetter indicated
he wished to terminate his conversation with Spreier. At approximately 2:05 a.m., Branstetter
asked the officers to adjust his handcuffs. When Spreier removed Branstetter from the patrol
vehicle to adjust the cuffs, Branstetter asked why Dodd had been taken into custody. Deputy
Spreier explained that Branstetter's invocation of his Miranda rights prohibited police
from
discussing ownership of the narcotics and required that both of the vehicle's occupants be taken
into custody. Branstetter then said he had a drug problem and admitted possession of the
methamphetamine.

Branstetter was charged with one count of possession of methamphetamine under K.S.A.
2007 Supp. 65-4160(a) and one count of possession of a controlled substance without a tax
stamp affixed under K.S.A. 79-5204.

At Branstetter's bench trial, he moved to suppress evidence found in the search and the
statements he made admitting ownership of the methamphetamine. The trial court denied both
motions and found Branstetter guilty on both counts.

Discussion

On appeal, Branstetter argues the district court erred in denying his motion to suppress
evidence because the deputies lacked statutory authority or other reasonable grounds to impound
the vehicle. Additionally, Branstetter argues the deputies exceeded the scope of the exception
permitting searches incident to lawful arrest.

We apply a bifurcated standard of review to the district court's decision on a motion to
suppress evidence. Without reweighing the evidence, we review the district court's findings to
determine whether they are supported by substantial competent evidence. We review the ultimate
legal conclusion regarding the suppression of evidence using a de novo standard. State v.
Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). When the material facts are
undisputed, the
question of whether to suppress is a question of law over which we have unlimited review.
State
v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).

Impoundment and Inventory Search

Branstetter first argues his vehicle was improperly impounded because the deputies lacked
explicit authority or otherwise reasonable grounds to impound the vehicle. And, because an
inventory search is permitted only when officers have gained lawful custody of the vehicle,
Branstetter contends the inventory search was unlawful and district court erred in refusing to
suppress evidence found in the search.

Generally, a search and seizure of evidence obtained without a warrant is per se
unreasonable, subject only to a few specifically established and well-delineated exceptions.
State
v. Shelton, 278 Kan. 287, 294, 93 P.3d 1200 (2004). Inventory searches of lawfully
impounded
vehicles, conducted pursuant to standardized policy procedures, have long been recognized as one
of these exceptions. 278 Kan. at 294; see South Dakota v. Opperman, 428 U.S. 364,
372, 49 L.
Ed. 2d 1000, 96 S. Ct. 3092 (1976). Inventory searches serve three purposes: "'the protection of
the owner's property while it remains in police custody, the protection of the police against claims
or disputes over lost or stolen property, and the protection of the police from potential danger.
[Citation omitted.]'" Shelton, 278 Kan. at 294; see Opperman, 428 U.S.
at 369. An officer
searching a car after a lawful impoundment may conduct a "warrantless inventory search of the
personal property within the vehicle, including the glove box and trunk, when the same may be
accomplished without damage to the vehicle or its contents." State v. Fortune, 236
Kan. 248,
257, 689 P. 2d 1196 (1984); see State v. Canaan, 265 Kan. 835, 843-44, 964 P.2d
681 (1998).

In order to impound a vehicle, the police must have authority by statute or ordinance, and
if no such authority exists, impoundment is appropriate only if the State establishes "reasonable
grounds" for the impoundment. State v. Teeter, 249 Kan. 548, 550-51, 819 P.2d 651
(1991).

Here, although the State argues that Deputy Spreier relied upon sheriff's policy when
impounding the vehicle, the State does not suggest the impoundment was authorized by statute or
ordinance. Instead, the State argues that reasonable grounds existed for the impoundment, making
the subsequent inventory search lawful.

The prosecution has the burden of proving an impoundment is reasonable
under the
totality of the circumstances. Shelton, 278 Kan. at 293. Although no bright-line rule
specifies or
limits the "reasonable grounds" for impoundment, our Supreme Court has identified six situations
giving rise to reasonable grounds:

"'"[T]he necessity for removing (1)
an unattended-to car illegally parked or otherwise illegally
obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is
physically or mentally incapable of deciding upon steps to be taken to deal with his property, as
in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has
been stolen or used in the commission of a crime when its retention as evidence is necessary; (4)
an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public
highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in
the case of forfeiture. . . ."'" Teeter, 249 Kan. at 552 (citing State v. Boster,
217 Kan. 618, 624,
539 P.2d 294 [1975]).

The State does not argue that any one of these factual scenarios apply here, but instead
suggests the impoundment was reasonable because (1) Branstetter was "pulled over on a city
street;" (2) Branstetter's arrest on outstanding warrants left the vehicle "unattended"; and (3)
pursuant to "Sheriff's Department policy," Deputy Spreier could not release the vehicle to anyone
other than the registered owner.

There are several flaws in the State's analysis. First, the State fails to explain the
significance of its assertion that the vehicle was "pulled over on a city street." Moreover, the
record is contradictory on this point. While Deputy Spreier testified he pulled Branstetter over "in
the 5000 block of South Seneca," he also indicated under cross-examination that Branstetter's
vehicle was on "private property." In any event, the record contains no evidence indicating exactly
where or how the vehicle was parked. The State failed to establish that the vehicle was illegally
parked, was obstructing traffic, had mechanical difficulties, or any of the reasons identified by
Teeter as providing reasonable grounds for impoundment when the vehicle also was
"unattended."

The State has the burden to prove an impoundment is "reasonable" under the totality of
the circumstances. The simple fact that the vehicle Branstetter was operating was pulled over on a
city street or even on private property does not provide a reasonable ground for impoundment.

Moreover, even if the record supported the State's implication that the location of the
vehicle presented safety or traffic concerns, the record does not support the State's assertion that
the vehicle was "unattended." Rather, the vehicle's passenger, Robin Dodd, was not arrested and
eventually was driven home by an officer. Further, the record reveals that the officers intentionally
did not consult Branstetter or attempt to reach the vehicle's registered owner to attend to the
vehicle.

The State implies that the vehicle was unattended and impoundment was reasonable,
because of the sheriff's "policy" of refusing to allow anyone other than a registered owner to drive
an unattended vehicle.

Again, the State's argument is flawed. First, we note that although the "policy" was
generally testified to by Deputy Spreier, it was never produced. Further, while the department's
"policy" is one factor to consider, it cannot simply nullify other relevant factors in the
reasonableness inquiry, including the location of the vehicle, whether the vehicle is unattended, or
whether the operator of the vehicle was consulted regarding disposition of the vehicle.

Branstetter points out that our Supreme Court in State v. Fortune, 236 Kan.
248, held that
the operator of a vehicle should be given an opportunity to determine the disposition of the
vehicle:

"If the owner, operator, or person in charge of the vehicle is readily available to make a
determination as to the disposition of the vehicle then he may do so. If the person responsible for
the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned
over to some other person's custody, then, absent some other lawful reason for impounding the
vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked
and
unattended, or where the person responsible for its possession is unable . . . or unwilling to
instruct the arresting officers as to the vehicle's disposition or some other legal reasonable
justifying impoundment exists should the officers assume control over the vehicle." (Emphasis
added.) Fortune, 236 Kan. at 257.

Clearly, under the Fortune test, the fact that Branstetter was not the owner of
the vehicle
is not controlling, or even significant. Rather, Fortune suggested that the "owner,
operator, or
person in charge" of the vehicle should be given an opportunity to determine the disposition of the
vehicle. The State concedes that Branstetter was not consulted regarding his wishes concerning
disposition of the vehicle and does not suggest that Branstetter was unable to do so.

The State correctly points out, however, that in State v. Shelton, 278 Kan. at
293, the
court distinguished Teeter and clarified that a competent driver need not be given an
opportunity
to arrange for the disposal or removal of a vehicle to avoid impoundment. Shelton,
278 Kan. at
293. Rather, the court held that all that is required under the Fourth Amendment to the United
States Constitution "is that the impoundment be reasonable under the totality of the
circumstances." Further, the court reasoned that the officer's inquiry of the driver regarding
disposition is but one of the circumstances that is considered in the court's determination of
whether the impoundment is reasonable. 278 Kan. at 293.

Significantly, in Shelton, the defendant was not the owner of the van in which
he was
found asleep. Further, the van was parked in "the middle to right hand side" of a rural road near a
stop sign. The vehicle was impounded because following Shelton's arrest for a revoked license in
a rural area, there was no one "immediately available" to retrieve the vehicle, and it was also
obstructing traffic. 278 Kan. at 288-89.

Here, the State interprets Shelton, when considered in conjunction with the
Sheriff's
department policy, to relieve Deputy Spreier of any obligation to consult Branstetter or the
registered owner about the disposition of the vehicle.

While Shelton made clear that there is no Fourth Amendment right to police
consultation
regarding the disposition of the vehicle before impoundment, the court in Shelton also
clearly
stated: "Consultation is but one factor, although an important factor to be considered
among the
totality of the circumstances in the determination of whether impoundment is reasonable."
(Emphasis added.) 278 Kan. at 296.

Nor are we bound by Shelton's conclusion that reasonable grounds for
impoundment
existed even though the defendant was 'readily available'" and may have been able to suggest an
alternative disposition." 278 Kan. at 296-97. Again, the Shelton court considered this
factor in
light of the totality of the circumstances, including that the defendant's arrest left his vehicle
unattended, illegally parked, obstructing traffic, and not readily accessible in a rural area. 278
Kan. at 296.

The totality of the circumstances here--i.e., the vehicle was not "unattended,"
illegally
parked, or obstructing traffic--does not permit us to disregard the officer's failure to consider
permitting the passenger to drive, to consult Branstetter, or to attempt to contact the registered
owner regarding disposition.

Essentially, the State seeks to rely upon an unwritten and unproduced "policy" as carte
blanche authority permitting the State to impound a vehicle when the registered owner is not
present and the operator is arrested. The State would implement this policy without regard to (1)
the wishes of the operator or the owner; (2) whether a passenger may be present to attend to the
vehicle; and (3) whether the vehicle presents a safety or traffic hazard. The State's rationale would
eviscerate the "reasonable grounds" test established in Fortune and the "totality of the
circumstances" analysis espoused by Teeter. See Shelton, 278 Kan. at
301 (Beier, J., concurring)
(questioning whether a "highly malleable reasonableness test adequately safeguards" expectations
of privacy).

Because none of the three "reasons" offered by the State for impoundment, whether
considered separately or in their totality, provided reasonable grounds for impoundment of the
vehicle, the impoundment was unlawful and the subsequent inventory search was invalid. See
Fortune, 236 Kan. at 257.

The Inventory Search

Finally, we note that before the trial court, the defendant questioned the lawfulness of the
inventory search and suggested the purpose of the search was to investigate for other
incriminating evidence. While the trial court did not specifically rule on this suggestion, we note
that the facts support this argument and bolster our conclusion concerning the unlawful
impoundment.

As the court noted in Shelton:

"'[A]n inventory search must not be a ruse for a general rummaging in order to discover
incriminating evidence. The policy or practice governing inventory searches should be designed
to produce an inventory. The individual police officer must not be allowed so much latitude that
inventory searches are turned into "a purposeful and general means of discovering evidence of
crime."'" 278 Kan. at 299 (quoting Florida v. Wells, 495 U.S. 1, 4, 109 L. Ed 2d 1,
110 S. Ct.
1632 [1990]).

Significantly, the defendant in Shelton also argued the inventory search was a
pretext to
conduct an investigatory search. The court rejected this argument, concluding:

"[T]here is no evidence in the record suggesting that the officers had a hidden agenda as
to the
search. The officers had never come into contact with the defendant, did not recognize the van,
and had no reason to suspect the defendant of hiding contraband in the van." 278 Kan. at
299-300.

In contrast, in this case, Deputy Spreier had several prior contacts with the defendant, and
Spreier admitted he suspected Branstetter of having narcotics in his vehicle based on these prior
contacts. In fact, Deputy Spreier called in a K-9 unit to conduct a search for narcotics at the same
time the officers were conducting an inventory search. Thus, the search of Branstetter's vehicle
was clearly not limited to producing an inventory of the vehicle's contents and was undertaken
with an investigatory goal.

While we need not consider the lawfulness of the inventory search based on our
conclusion that the impoundment was not based on reasonable grounds, the motive for and nature
of the eventual search buttresses our conclusion that the impoundment was not reasonable under
the circumstances.

Search Incident to Lawful Arrest

Branstetter also argues the search was not a valid search incident to arrest because it was
not aimed at "[d]iscovering the fruits, instrumentalities, or evidence of the crime."
(Emphasis
added.) K.S.A. 22-2501 (Furse 1995). However, we need not consider this issue as the State does
not argue on appeal that the search was justified as a search incident to a lawful arrest, but only
that the search was a lawful inventory search.